Research On The Fair And Equitable Treatment Standard In Internationnal Investment Agreements

Accompany with the liberalization of international investment, foreign direct investment develops rapidly. The obligation to provide "fair and equitable treatment" is often stated, together with other standards, as part of the protection due to foreign direct investment by host countries. Hovever, The obligation of the parties to investment agreements to provide to each other's investments "fair and equitable treatment" has been given various interpretations by governmental officials,arbitrators and scholars. The implications of this discussion could be very broad, in particular given the growing number of arbitral awards which examine claims of denial of fair and equitable treatment. In the interest of China, it is necessary to study on fair and equitable treatment standard.China, the world's major country absorbed foreign direct investment, the majority of bilateral investment treaties signed with foreign countries provide for fair and equitable treatment, promised give fair and equitable treatment to foreign investors, but did not specify how to determine whether the host country breach it's obligations of giving foreign investors fair and equitable treatment. In.this way, the dispute is not conducive to quick and efficient settlemented. On the other hand, as China's accession to WTO, China's rapid economic development, China's foreign direct investment has also developed rapidly, China has changed from the capital importing country to both capital-importing countries and capital-exporting country, how to protect China's overseas investment in the interests of investors and safeguard our investors in a foreign country to enjoy fair and equitable treatment. This requires us study fair and equitable treatment in international investment treaties, from the balance of the host country and foreign investors, accurate the meaning and content of fair and equitable standards.This article will integrate theory with practice, first introduced the origins and development of the standards of fair and equitable treatment, and then with specific provisions of international treaties and international arbitration practice, analyze the meaning and content of fair and equitable treatment, analyze the relationship between fair and equitable treatment and other investment treatment. After clear the connotation and extension of fair and equitable treatment,the article finally summarize the problems of fair and equitable treatment provisions existing in China's bilateral investment treaties and propose solutions. In the course of the study, the article analyze fair and equitable treatment through game theory model and how to define fair and equitable treatment standard to balance the interests between developing and developed countries, but in order to maintain overall specification of the law papers, the article will discuss it in the annex.This article is divided into five chapters.Chapter one is the introduction of the article. The chapter firstly introduces the research background and significance of the article.Then research literature at home and abroad are reviewed, outlining the research ideas, frameworks and methodologies.At last the chapter pointed out the innovative point of this article.Chapter two introduces the origins of the fair and equitable treatment standard and its current use in international agreements and state practice.The chapter firstly reviews the origins and developments of the fair and equitable treatment standard in international investment laws. Then introduces the recent developments of fair and equitable treatment standard. U.S. and Canada have learned lessons from their practice in NAFTA, and made great changes of the provisions as to fair and equitable treatment standard in their new BITs.Chapter three try to analyzes the meaning of this principle.The chapter firstly introduces the provisions as to fair and equitable treatment standard in some famous Intenrational Investment Agreements.Then reviews the meaning and elements of the content of the standard as defined by arbitral tribunalsChapter four focus on the fair and equitable treatment and its relation to national treatment and most favoured nation treatment,especialy to the minimum standard of international customary law. Finally the chapter conclud that fair and equitable treatment is an independent self-contained treaty standardChapter five returns to the relevant practice of China.Firstly the chapter gives an overview of the provisions as to fair and equitable treatment standard in China's BITs and analyses the defects of those provisions Then the chapter give some advice on how to improve the provision of fair and equitable treatment standard in China's BITs.The annex analyze the fair and equitable treatment standard from the perspective of game theory,then we can make clearer the real reason of making diffrent strategic choices by developing coutry and developed coutry. On the whole, the principle of the fair and equitable treatment standard should be a fundamental investment treatment standard of international investment law and has played an important role in promoting cooperation in the choice of countries.Paper's main contribution lies in:1.analyze and compare specific provisions and the relevant practice relating to fair and equitable standard in international treaties and international arbitration, explore and research the specific meaning and content of fair and equitable treatment. Based on the theory of balance of interests between investors and the host country, provide a reference standard for international legislation; 2.by comparison with other investments treatments, give the legal status of fair and equitable standard, clarify the controversy of the legal nature of fair and equitable treatment; 3. analyze the problems of fair and equitable treatment provisions in China's bilateral investment treaties, put forward a sound proposal;4. study fair and equitable treatment standard depthly through game theory model.